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Showtime Entertainment, LLC v. Town of Mendon

United States Court of Appeals, First Circuit

October 8, 2014

SHOWTIME ENTERTAINMENT, LLC, Plaintiff, Appellant,
v.
TOWN OF MENDON, ET AL., Defendants, Appellees

As Corrected October 10, 2014.

Page 62

[Copyrighted Material Omitted]

Page 63

[Copyrighted Material Omitted]

Page 64

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. F. Dennis Saylor, IV, U.S. District Judge.

Thomas Lesser, with whom Michael Aleo and Lesser, Newman & Nasser, LLP were on brief, for appellant.

Brandon H. Moss, with whom Robert S. Mangiaratti and Murphy, Hesse, Toomey & Lehane, LLP were on brief, for appellees.

Before Torruella, Howard, and Kayatta, Circuit Judges.

OPINION

Page 65

TORRUELLA, Circuit Judge.

This case directs our attention to the extent by which a town may abridge expressive activity, protected under the First Amendment and the Massachusetts Constitution, as a valid exercise of its zoning power. The Town of Mendon, Massachusetts (" Mendon" ) has set forth a veritable maze of zoning restrictions that are singularly applicable to adult-entertainment businesses. Owning one of the few parcels of land within Mendon city limits still available for the conduct of such business, Showtime Entertainment, LLC (" Showtime" ), attempted to navigate these many restrictions. The result: Showtime received an adult-entertainment license but found its preferred building plans circumscribed in both size and height, its proposed operating hours curtailed, and its ability to receive a license to sell alcohol foreclosed.

Before the district court, Mendon cast these restrictions as appropriate measures by which it sought to control only the secondary effects uniquely related to the expressive activity -- altered town aesthetics, heavy traffic flow, and increased crime. Showtime retorted that the restrictions infringed on its ability to present live nude dancing to a degree that violated the Federal Constitution and the Massachusetts Declaration of Rights.

Viewing Showtime's suit as a facial challenge to the bylaws, the district court entered summary judgment in favor of Mendon,

Page 66

concluding that the restrictions in question were sufficiently tailored towards controlling the secondary effects of speech. After careful consideration, we disagree that the bylaws regulating the size, height, and hours of operation support a substantial, content-neutral governmental interest. We find that these bylaws -- which have no effect on other businesses of like size, height, or operating hours -- unconstitutionally infringe on Showtime's right to engage in a protected expressive activity. We also find that the application of Article 16 of the Massachusetts constitution to the Mendon bylaw banning the sale and consumption of alcohol is a ...


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